Though the Supreme Court by a wide margin today formally declined to resolve a challenge to the constitutionality of Section 5, the reality is far different. The decision unambiguously served notice that the Justices are prepared to invalidate the statute as it stands. Congress is now effectively on the clock: it has the period between now and the date that it decides a follow-on challenge by a covered jurisdiction that is not permitted to “bail out” of the statutory scheme to amend Section 5. If the statute remains the same by the time the next case arrives, the Court will invalidate the statute.

Today’s ruling is thus as much subtext as text. An entire section of the opinion is devoted to the constitutional infirmities of Section 5. There is no counter-point. Nor do any of the Court’s more liberal members issue a reassuring concurring opinion indicating that Section 5 would survive a constitutional challenge – though some surely believe it.

The Court’s opinion will go down in history I think as among the Chief Justice’s most significant, and a model for his philosophy of judicial minimalism, which plays out in this case in two separate respects. First, the Court gives Congress in the first instance the opportunity to exercise its constitutional responsibility to apply the Constitution. Second, the opinion brings together a wide majority of eight Justices for a result with which they can all agree.

Congress’s response will dictate whether the Court next acts more decisively and divisively. The model of judicial decision making suggests that a majority of the Supreme Court is willing to give Congress some measure of breathing room in exercising its authority to enforce the Fifteenth Amendment. The opinion does not resolve the debate over the breadth of that power. But today’s opinion is in effect one paragraph in a larger conversation between the legislative and judicial branches over how to confront the modern legacy of the nation’s ugly history of racial discrimination in voting. A majority of the Court could have imposed its own will in dictating the answer to that question, but more modestly – to use the Chief Justice’s phrase – left it to Congress to attempt to address the Justices’ concerns.

A failure by Congress to respond to the Court’s opinion will be fatal to Section 5. If a jurisdiction that is unable to “bail out” from the statute’s coverage yet does not have a reasonably recent history brings a challenge to the statute as currently enacted, it will succeed. The model here is arguably Bush v. Palm Beach County Canvassing Board, which unanimously set forth the Court’s concerns with the Florida recount. When the Florida Supreme Court failed to respond appropriately – indeed, at all – the U.S. Supreme Court halted the recount outright by a narrow, ideologically divided majority in Bush v. Gore.

The interesting question, in fact, is how the next challenge will arrive before the Justices. The arguable logic of today’s ruling is that a jurisdiction must attempt to bail out before challenging the constitutionality of Section 5. But there is no such requirement. And the next plaintiff may skip that steps and directly challenge the application of the preclearance regime.

How then could Congress amend Section 5 in order to sustain it? The statute operates on three relevant axes. First, it has a geographic scope that defines the covered jurisdictions that must preclear changes to their voting systems. Second, it has a trigger, which currently requires preclearance for any voting change, however minor. Third, it has an escape hatch – the “bail out” provision that allows covered jurisdictions to prove that they should no longer be subject to preclearance.

Modifications to any of the three would alleviate the Justices’ concerns with Section 5 to some extent. But today’s opinion puts considerable focus on the geographic scope of the statute, and in particular the base-line date for determining whether a jurisdiction will be covered. An amendment updating those measures is the surest way to garner at least a fifth vote for the statute’s constitutionality.

The Court’s opinion (at page 8) explains that Section 5 “imposes current burdens and must be justified by current needs” (emphases added). It continues on the same page: “The statute’s coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions.” The Court describes its prior opinion in Katzenbach upholding Section 5 as “conclud[ing] that "exceptional conditions’ prevailing in certain parts of the country justified extraordinary legislation otherwise unfamiliar to our federal system. . . . Whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today.” Id. at 16 (emphasis added).

The opinion thus (at 4-5) traces the history of extensions of Section 5, which was originally enacted as a temporary measure but was reauthorized “in 1970 (for 5 years), 1975 (for 7 years), and 1982 (for 25 years).” It notes (at 5) that the “coverage formula remained the same, based on the use of voting eligibility tests and the rate of registration and turnout among all voters, but the pertinent dates for assessing these criteria moved from 1964 to include 1968 and eventually 1972.” But the 2006 reauthorization “retained 1972 as the last baseline year for triggering coverage under §5.” Ibid. With respect to the plaintiff in particular, the opinion twice notes (at 1 & 5) that “there has never been any evidence of racial discrimination in voting in the district.”

A more modest amendment to Section 5 would have a less-certain future. Congress could direct that any preclearance objection first give the covered jurisdiction the opportunity to request that it be permitted to “bail out.” In effect, Congress would deprive would-be challengers to the Section 5 regime of the opportunity to directly contest the statute’s constitutionality if they have a claim that they have not recently engaged in discrimination.

Section 5’s preclearance regime as it stands — with its triggers not updated sufficiently in the Justices’ views – thus is best regarded as unconstitutional in the opinion of a majority of the Supreme Court. That will not be so, if at all, only if it becomes exceedingly clear that the “bail out” mechanism works in a fashion that freely permits covered jurisdictions to avoid coverage under Section 5. If not, the Court is willing in the first instance to defer to some extent to Congress’s judgment about how to address the constitutional challenges to the statute, so long as it takes concrete steps to address the perceived disconnect between the statute’s current application and the historical data that is used to trigger the preclearance regime. The ball is in the legislature’s court, and the clock is ticking.

Upcoming Oral Arguments

3/31Kimble v. Marvel Enterprises, Inc. Whether the Court should overrule Brulotte v. Thys Co., which held that “a patentee’s use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se”.

4/20Johnson v. United States Whether possession of a short-barreled shotgun is a violent felony, leading to a longer prison term as a career criminal.

4/21McFadden v. United States A federal prosecutor’s duty to prove that a suspect knew that a substance was an illegal substitute for a banned drug.

4/22Horne v. Department of Agriculture The federal government’s duty to pay raisin growers for an order requiring removal of part of a year’s crop from the market to stabilize prices.

On Monday afternoon Justices Anthony Kennedy and Stephen Breyer testified before the House Appropriations Committee. The purpose of the hearing was to discuss the Court’s budget for the next fiscal year and the federal judiciary, but the legislators also took full advantage of the occasion to touch on other topics as well.